On Rehearing.
On this rehearing, appellees challenge the judgment of this court in reversing the judgment of the trial court and rendering *1023judgment for appellees, on tlie following grounds:
[10] (1) This court is without authority to review findings of a jury and make affirmative findings for appellees.
This proposition is sound where the finding is against the great weight and preponderance of the testimony, but where, as in this case, the testimony does not even raise the issue submitted to the jury, and on the record as made it was the duty of the trial court to instruct a verdict for appellants, it is our duty to reverse the judgment of the trial court and here render such judgment as should have been rendered on the facts and pleadings. This rule has direct application to this cause, because it affirmatively appears from this record, both on the pleadings and the evidence, that appellees cannot strengthen their case on another trial.
[11] (2) And in this connection they say that we should not render judgment for appellants, but should reverse the ease so that they may have the privilege of going to the jury on their issue of limitation.
We would grant this prayer if it were possible to raise this issue on another trial. We held against this proposition in- our original opinion. We there said:
“Plaintiffs could not recover on their pleas of limitation. If it be conceded that, as between him and Swilley and Mrs. Phillips, he had perfected a title by limitation to the two tracts of land deeded to him by Moore, before the settlement of June 11, 1913, yet this limitation claim was merged into the judgment, and he could assert no rights thereunder without first correcting this judgment. Hamilton v. Blackburn, 95 S. W. 1094. And since the rendition of that judgment he has not perfected another title by limitation.”
[12] Appellees do not question the soundness of our original opinion in so far as it is supported by Hamilton v. Blackburn, 43 Tex. Civ. App. 153, 95 S. W. 1094, but they contend that Palmer has perfected a new title by limitation under the five-year statute since the rendition of the Phillips-Palmer judgment. We cannot agree with them in this contention. If we concede that Palmer was in possession of the 5.2 acres prior to the rendition of the Phillips-Palmer judgment, under circumstances meeting the full measure of the five-year statute, and thereby had perfected a title under that statute, yet that old judgment divested title out of him, and he is now estopped to claim under the deed from Moore conveying him this 5.2 acres. The judgment so entered was as complete a bar to a title by limitation based on that deed as if he had voluntarily conveyed it. Fisk v. Miller, 20 Tex. 579; Voight v. Mackle, 71 Tex. 78, 8 S. W. 623; Doom v. Taylor, 35 Tex. Civ. App. 251, 79 S. W. 1088; Daugherty v. Yates, 13 Tex. Civ. App. 646, 35 S. W. 939; Smith v. Bunch, 31 Tex. Civ. App. 541, 73 S. W. 563; Shaw v. Thompson Bros. Lbr. Co., 177 S. W. 574. With this judgment outstanding against him, Palmer could only mature a. title under the ten-year statute. As he was not in possession of the land ten years subsequent to the entry of the Phillips-Palmer judgment, no issue under the claim of limitation could be raised on another trial.
[13] (3) They now advance this proposition:
“This suit was not brought to correct any error of the court in the rendition of said judgment of district court, but the suit was brought for and the plaintiff prays for the correction of an error made in the entry of the judgment rendered by the court upon the records of the court to the end that the records of the court will correctly show the judgment of the court actually rendered on the agreement of the parties to the suit; and the four-years statute of limitations has no application to this suit.”
Under Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040, the principle of law invoked in this proposition is sound. Conceding, for the sake of argument, that appellees now suggest the proper construction of their pleading (though this was not their position on original submission), it cannot afford them relief. The judgment actually rendered by the court was “in favor of L. P. Palmer for the 20 acres claimed by him and described in his cross-action.” Thus the judgment actually rendered by the court did not include the 5.2 acres, nor the 1.52 acres. If appellees only pray that the judgment entered on the minutes be made to reflect the actual judgment rendered by the court, they now have all the relief that could be granted them, as appellants conceded them the 13.28 acres, and no appeal was taken from that part of the judgment. Under the construction now placed by appellees on their pleadings, no issue was raised as to the 5.2 acres nor the 1.52 acres,'and on their pleadings judgment should have been entered for appellants by the trial court.
[14] We cannot follow appellees in the distinction they would draw between a judgment on trial and a judgment by agreement. If we understand their position, they contend that the docket entry upon a judgment by agreement is not evidence of the judgment rendered by the court; that the judgment so rendered is the actual agreement of the parties; that if a mistake was made in stating this agreement to the court, as a matter of law, the actual agreement must be the judgment rendered. Hence they claim, as this was a suit to make the minutes reflect the actual judgment rendered by the court, and as the judgment so rendered was the actual agreeifient made, and as the agreement made included the land in controversy, under the rule announced in Coleman v. Zapp, supra, they were entitled to *1024the relief prayed for, and “the four-year statute of limitation had no application to this suit.” We do not so understand the law. A judgment by consent must be proven as other judgment, that is, by the entries made in the due prosecution of the suit, and, as said by Judge Neill, in Insurance Co. v. King, 31 Tex. Civ. App. 636, 73 S. W. 71:
“A final judgment on the merits is just as conclusive on the merits if entered by consent as if rendered after contest.”
See, also, Anderson v. Wynne, 25 Tex. Civ. App. 440, 62 S. W. 121; Goliad v. Weisiger, 4 Tex. Civ. App. 653, 23 S. W. 694; Hamilton v. Blackburn, supra; State Bank of Indiana v. Young, 2 Ind. 171, 52 Am. Dec. 501.
Under the cases just cited, appellants advance the following proposition, which we approve as a correct statement of the law:
“The fact that the judgment as entered' did not follow the parol agreement of parties made prior thereto would not make* said judgment any less binding. If said judgment was different from the agreement, the judgment would control so long as it stood unreformed. The fact that the court rendered a judgment different from that agreed upon would not make said judgment any less effective, and until such judgment was reformed to meet the agreement of parties, said judgment will control, and not the agreement of parties.”
The other propositions advanced by appel-lees on this rehearing are covered fully by our original opinion, and require no further discussion.
As appellants, by cross-actions, prayed for affirmative relief, and as the record before us shows that they own the record title to the land in controversy, we think we were correct in rendering judgment in their favor. The motions for rehearing are in all things overruled.